Citation Nr: 1114068
Decision Date: 04/08/11 Archive Date: 04/15/11
DOCKET NO. 07-36 812 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for a low back disorder.
4. Entitlement to an initial compensable rating for skin erythema.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans' Affairs
ATTORNEY FOR THE BOARD
Dan Schechter
INTRODUCTION
The Veteran had active service from March 1960 to March 1963.
The appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO).
The Board in December 2009 remanded the appealed claims for additional development, and they now return to the Board for further review.
The issues of entitlement to service connection for bilateral hearing loss and tinnitus, and service connection for a low back disorder are herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
FINDINGS OF FACT
For the entire initial rating period beginning November 29, 2007, the Veteran's service-connected skin erythema has most closely approximated urticaria with recurrent episodes occurring at least four times during any 12-month period, responding to treatment with antihistamines or sympathomimetics, but has not approximated urticaria with recurrent debilitating episodes.
CONCLUSION OF LAW
For the entire initial rating period beginning from the November 29, 2007, date of service connection, the criteria for a disability rating of 10 percent, but no higher, have been met for service-connected skin erythema. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.20, 4.118, Diagnostic Code (DC) 7825 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2010). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice and, as discussed herein, the Board has not identified any.
The Veteran's claim here arises from his disagreement with the initial evaluation following the grant of service connection. Judicial precedent holds that, once service connection is granted, the claim has been substantiated, additional notice is not required, and any defect in previous notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice, beyond that afforded in the context of the Veteran's initial claim for service connection, is needed under the VCAA.
The Veteran was afforded a VCAA notice letter in February 2008, prior to the initial RO adjudication denying service connection for erythema, and prior to the subsequent RO readjudication in December 2008 granting service connection for skin erythema and assigning a noncompensable initial evaluation for that disorder. He was afforded an additional notice in March 2006, as to how VA determines disability ratings and effective dates for ratings, in general compliance with the requirements of with the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), as well as providing specific information regarding rating for the claimed erythema as exfoliative dermatitis under 38 C.F.R. § 4.118, Diagnostic Code 7817.
Notwithstanding the absence of a requirement for specific VCAA notice regarding the initial rating the subject of appeal, the Board notes that it has herein found that a rating by analogy to urticaria under 38 C.F.R. § 4.118, DC 7825, is warranted in this case, general notice of the bases of assigning higher ratings and effective dates for assigned ratings were appropriately afforded in the course of appeal. The Veteran was afforded an additional VCAA letter in January 2010 including addressing the initial rating claim for skin erythema. These letters provided the Veteran with general notice of the evidence required to satisfy the claim for a higher initial evaluation, though not based on urticaria. This is sufficient notice in this case for two reasons. First, because in this case, as already noted, no additional VCAA notice addressing the initial rating claim was required following VCAA notice preceding the grant of service connection. Hartman. Second, the type of VCAA notice required to address rating claims is general notice of ratings for disabilities, not specific notice of all rating criteria potentially applicable. Dingess. The Veteran was afforded further readjudication of the claim in a June 2009 SOC and SSOCs in August 2009 and February 2011.
VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that the RO appropriately assisted the Veteran in obtaining indicated treatment and evaluation records, including both VA and private records. Service records were previously associated with the claims file. The RO also informed the Veteran, including in the appealed rating action and by an SOC and SSOCs, of records obtained, and thus by implication of records not obtained, in furtherance of his claim.
Although the Board recognizes that a disability such as the Veteran's skin erythema may alter in its severity at any time, judicial efficiency precludes continuous updating of the evidentiary record so as to assure that no more recent event or disease progression as pertaining to the disorder is missing from the claims file. Such continual updating, with the associated requirement of RO review of the new evidence prior to Board adjudication, pursuant to 38 C.F.R. § 19.37, would ultimately preclude the Board from ever adjudicating the claim. Such a consequence would necessarily deprive the Veteran of the benefit of the Board's review and adjudication. In addition, the Veteran has not submitted any statement indicating that the disability at issue has increased in severity since the recent treatment records were obtained in August 2009, and the record does not otherwise objectively reflect a change in severity of disability following the VA examinations conducted in November 2008 and January 2010, beyond the intermittent exacerbations considered herein by the Board and reflected in the state of disability evaluated by the VA examination in January 2010.
VA's duty to assist the Veteran by providing examinations when necessary was also adequately fulfilled. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. He was afforded VA examinations for skin erythema in November 2008 and again in January 2010. These examinations were appropriately followed by review of the claim by the RO, including most recently with issuance of the February 2011 SSOC. The examinations, taken together with records of VA and service treatment, and statements and testimony by the Veteran, as well as other evidence of record, are adequate for the Board's adjudication herein. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA examinations, taken as a whole, addressed both the medical findings upon current examination and the Veteran's history. The examination reports presented findings and conclusions consistent with the Veteran's medical history and sufficiently addressed the criteria for rating the skin disorder in question to allow the Board to adjudicate the claim based on informed medical findings and medical judgment. The Board accordingly concludes that additional medical evaluation would amount to no more than a fishing expedition. Hence, further examination would constitute unreasonable delay and expenditure of scarce VA resources. See 38 C.F.R. § 3.303; Counts v. Brown, 6 Vet. App. 473, 478- 9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's statutory duty to assist is not a license for a "fishing expedition").
Based on the evidence presented, the Board finds no reasonable likelihood that further evaluation would produce findings supporting a higher disability rating than that assigned herein for the initial rating period the subject of the Board's adjudication herein. Ultimately, in the absence of credible evidence to support a still higher initial evaluation the burden must shift to the Veteran to produce evidence of such greater severity of disability which has not been found upon VA examination or otherwise shown by the evidence of record. The claimant bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).
The Veteran has not indicated the existence of additional pertinent evidence. The case presents no reasonable possibility that additional evidentiary requests would further the appealed claim. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, supra.
The Board also finds that development requested by the Board in its December 2009 remand with regard to the higher initial rating claim for skin erythema have been substantially fulfilled. This has included providing the Veteran with additional VCAA notice, obtaining additional VA treatment records and associating these with the claims file, affording the Veteran an additional VA examination addressing the nature and severity of the Veteran's claimed skin erythema, and readjudication of the developed claim by the RO or AMC. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008).
In short, in this case, with regard to the higher initial rating claim herein adjudicated, the Board finds that any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the ratings assigned for the rating period in question, for the appealed claim. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005).
The Veteran was duly afforded the opportunity to produce additional evidence to support his claim. Thus, the Board determines that the evidentiary record is adequate, and the only significant medical question remaining pertaining to the Veteran's claim for a higher initial rating for skin erythema - that of evidence of greater disability - was in this case, based on development already undertaken, the responsibility of the Veteran. See 38 C.F.R. § 3.303.
In view of the foregoing, the Board finds that all notification and development actions needed to render a decision on the Veteran's claim on appeal herein adjudicated have been accomplished.
II. Claim for a Higher Initial Rating for Skin Erythema
In this case, the Veteran contends, in effect, that his skin erythema warrants a higher initial disability rating than the noncompensable rating assigned, based on the following: 1) regular recurrence of symptomatic skin erythema, and 2) frequent exacerbating episodes of significant skin irritation or itching resulting in functional impairment including impaired sleep.
Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In all cases, the Board attempts to determine the extent to which the Veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.
In determining the level of impairment, the disability must be considered in the context of the entire recorded history. 38 C.F.R. § 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
The Board has been directed to consider only those factors contained wholly within the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.
Staged ratings are to be considered for assigning initial ratings downstream of grants for service connection, beginning from the effective date of service connection, as in this case with the claim for skin erythema. Fenderson v. West, 12 Vet. App 119 (1999).
Medical evidence is generally required to establish a medical diagnosis or to address other medical questions, and lay assertions do not constitute competent evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support claims by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology").
It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").
In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996).
The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, supra; see also Buchanan v. Nicholson, supra ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").
It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.
The Veteran was afforded a VA examination addressing the skin disorder in November 2008. The examiner noted the Veteran's history of rash outbreaks in various parts of his body in service, improved with treatment but nonetheless persistent. The Veteran reported using prednisone in the past but not in recent years, with use of Hydrophor ointment recently to control the itching. He added that rash outbreaks usually spontaneously cleared in two to three weeks. While the Hydrophor did not resolve the rash it also did not cause side-effects. The rash was noted to recur in multiple areas including the upper back; inside the thighs; and on the shins, calves, heels, and fingers. The rash was characterized by tiny red bumps that became scaly over time and flattened as the condition remitted.
Upon physical examination of the condition, the November 2008 examiner observed the rash to be present as patches of erythematous papillae on an erythematous base, present on the shin of the right leg over an area three centimeters in greatest diameter; a one-centimeter-diameter area over the right lateral malleolar; a spot on the calf of the left leg one-half centimeter in diameter; a scaly erythematous rash over the right upper back with an irregular shape two centimeters in diameter; and calloused, scaly skin over the metacarpal of the right third finger. The examiner observed no visible excoriations or large skin breakages. The examiner also found no clubbing or deformities of the digits. There was good capillary refill in the fingers.
The November 2008 examiner assessed skin erythema, which the examiner noted had been present in service and thereafter throughout the Veteran's adult life. She noted past diagnosis of nummular dermatitis, which was known to affect some individuals with atopic conditions. The examiner assessed that the condition covered less than one percent of total skin surface, and less than one-half percent of exposed skin.
The Veteran was afforded an additional VA skin examination in January 2010, at which he reported very bothersome itching associated with his skin rash, with episodes of exacerbation occurring three to four times per month during which the itching awakens him four times nightly, and he has to then reapply cream. He further reported that areas of rash "come and go," and he uses a steroidal cream on at least one lesion each day, adding that he used the steroidal creams twice daily on active lesions.
The January 2010 examiner noted areas of rash that were intermittent, and were present and more extensive at the January 2010 examination than upon the prior examination in November 2008. The Veteran informed that the current examination was during a period of exacerbation of the skin condition. The examiner noted that the Veteran's history was notable for his only once being prescribed a seven-day course of systemic prednisone in 2007, with no other records of systemic treatment between 2002 and the present. The Veteran informed that three to four times per month he had more severe pruritis and more skin areas affected by the lesions, with these episodes lasting "a couple of days," with less severe lesions at other times.
The examiner noted that the condition was manifested by pruritis and some pain or discomfort, though with no systemic manifestations, no associated limitations of motion, and no palpable tissue loss. The Veteran's said his work involved driving a truck, with the skin condition not affecting his work. He did, however, note that during the three to four episodes per month of exacerbation he did experience sleep loss of up to an hour per night. He denied side effects of treatment.
The January 2010 examiner further noted that the areas of lesions were variously sized but were present in predictable areas including over the superior shoulders, the scapular areas bilaterally, the dorsal aspects of the arms bilaterally, a small area of the posterior right hand, patches over the anterior thighs bilaterally, and over all of the lower legs and the dorsum of the feet bilaterally. The examiner noted that the lesions had not progressed to other areas. Lesions affecting the head, face, or neck were not found.
Upon the January 2010 examination, deep erythema was present over the bilateral distal triceps areas covering an area of 10 to 15 square centimeters on each side; erythema was present over the right dorsal hand in an area of approximately five square centimeters; two lesions over the left lower leg covered 10 centimeters and 18 centimeters square; lesions over the right lower extremity included one on the calf of eight to ten square centimeters, a lesion over the right dorsal foot of six to eight square centimeters, a patch over the lateral distal lower leg covering 25 square centimeters, an area of lesion over the right central lower leg of six to eight square centimeters, and a lesion over the anterior tibial area of 12 to 14 square centimeters. The examiner assessed that the active lesions covered 1 to 2 percent of total skin and less than one percent of exposed skin. The examiner noted further that total area involved at various times, as evidence by irregular patches of faint hyperpigmentation and excoriation marks, covered 20 percent of total skin area and less than one percent of exposed skin. The examiner diagnosed the condition as a migrating erythematous skin condition, also known as nummular dermatitis.
The Veteran's skin disorder diagnosed as erythema may be rated as dermatitis or eczema, based on current diagnoses and the characterizations of the disorder as reflected in examination records. Diagnostic Code 7806, for the evaluation of dermatitis or eczema, provides that, if the skin condition covers an area of less than 5 percent of the entire body or exposed areas affected, and no more than topical therapy is required during the past 12-month period, a noncompensable rating is warranted. If at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected; or if intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past twelve-month period, a 10 percent rating is warranted. A 30 percent rating requires 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected; or that systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past twelve-month period. Finally, a rating of 60 percent is warranted when the condition covers an area of more than 40 percent of the entire body or when more than 40 percent of exposed areas are affected, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past twelve-month period. 38 C.F.R. § 4.118.
If rated on this basis as dermatitis or eczema, a compensable rating has not been warranted over the initial rating interval because too small an area is affected at any one time and because systemic corticosteroids or immunosuppressive are not required for treatment. 38 C.F.R. § 4.118, DC 7806.
However, the Board notes that the Veteran has credibly characterized the skin condition as very itchy during episodes of exacerbation three to four times per month, with these episodes lasting a couple of days each. The January 2010 examiner noted areas of excoriation marks in areas greater than those of current, active erythematous process, serving as evidence of these episodes. Findings at the January 2010 examination provide a more appropriate basis for rating the disorder based on exacerbation at that time, or an active stage of disease. Ardison v. Brown, 6 Vet. App. 405, 407-8 (1994). The examiners did not discount the Veteran's credibility regarding his assertions of frequency or severity of symptoms, and the treatment and examination records contained within the claims file are generally in support. Based on these symptomatic episodes of recurrent frequency with associated disturbance manifested by multiple areas of itching rash resulting in symptomatic discomfort including impairment of sleep, the Board believes that the condition may also be rated by analogy to urticaria, or hives, under DC 7825. When an unlisted condition is encountered, it will be permissible to rate the condition under a closely related disease or injury in which not only the functions affected but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under the code for urticaria, where there are recurrent episodes occurring at least four times during the past 12 month period, with the condition responding to treatment with antihistamines or sympathomimetics, a 10 percent rating is warranted. DC 7825. The Board believes that such a 10 percent rating is warranted in this case based on recurrent episodes multiple times monthly symptomatically responding to topical therapies. The condition does not meet the criteria for the next higher rating under that code, characterized as recurrent debilitating episodes occurring four or more times during the past 12 months, and requiring intermittent systemic immunosuppressive therapy for control. DC 7825. The episodes, while clearly bothersome, are not shown or asserted to be debilitating.
Accordingly, rating by analogy to urticaria, the Board finds that for the entire initial rating period beginning from the November 29, 2007, date of service connection, the Veteran's skin erythema warrants a 10 percent disability evaluation, but no more, under Diagnostic Code 7825.
The Board has considered assigning intervals of higher ratings than the 10 percent granted by this decision, but finds that the evidence preponderates against higher ratings than 10 percent being warranted for the Veteran's erythema for the entire initial rating period beginning from the November 29, 2007, date of service connection for erythema. Fenderson. The criteria for higher ratings are simply not shown by the evidence, for the entire initial rating period.
The Board has duly considered the Veteran's assertions of symptoms in its rating of the Veteran's claimed erythema, finding his statements both competent and credible, but finding that these statements of symptoms of disability, taken together with the medical findings and other evidence of record, most closely meet the criteria for a 10 percent evaluation for urticaria, as an appropriate skin disorder upon which to base rating by analogy in this case. 38 C.F.R. §§ 4.20, 4.118, Diagnostic Code 7825.
ORDER
For the entire initial rating period beginning from November 29, 2007, a disability rating of 10 percent, but no more, is granted for service-connected skin erythema, subject to the laws and regulations governing the payment of monetary awards.
REMAND
The Board in its December 2009 remand expressly instructed the VA examiner who was to conduct the audiology examination to "note prior findings including upon VA examinations for compensation purposes in February 2006 and February 2009." Although the Veteran was afforded an additional VA hearing loss examination in January 2010 and the examiner asserted that he had reviewed the claims file, the examiner also noted that while the February 2006 VA examination was available because it was conducted at the same facility as the current examination, the February 2009 VA examination report was not available. This is superficially puzzling, since both those examination reports were contained within the claims file when the Board remanded the claim and they remain in the claims file now. The Board discerns from this outcome that the examiner likely did not have the entire claims file available for review and may have only had a partial temporary folder available. In any event, substantial compliance with the Board's December 2009 remand is required, and the failure of the examiner to review the February 2009 examination report as instructed is effectively not substantial compliance with the remand instructions, pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). Thus, remand is required for a fully informed addendum opinion by the examiner who conducted the January 2010 audiology examination for compensation purposes prior to the Board's adjudication of the claims for service connection for hearing loss and tinnitus.
Regarding the claim for service connection for a low back disorder, the Board remanded the claim for an addendum opinion by the examiner who had conducted the February 2009 spine examination and who provided an April 2009 addendum. The Board in its December 2009 remand instructed that opinions must be provided addressing the medical evidence of record, and that if opinions could not be provided the examiner should provide a complete explanation why this is so. The examiner in a January 2010 addendum stated that he could not provide requested opinions without resorting to "mere speculation, supposition, and a significant amount of guess-work." The examiner informed that past medical providers had given vague and non-specific assessments of the Veteran's back disorder, including using "ubiquitous wordage such as 'strain', 'disc going out,' etc." The examiner concluded that it is "simply not possible to make a scientifically accurate determination regarding causation, relationships, etiology, or origins of back problems without resorting to mere speculation . . . ."
However, medical opinions to inform adjudication of benefits claims need not be of such a "scientifically accurate" nature as to preclude some element of uncertainty of speculation. Rather, it is only medically unsupported speculation that cannot be the basis of medical opinion relied upon for VA adjudicative purposes. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1995). As the Court has noted, "Medicine is more art than exact science, and . . . a medical opinion [need not] be expressed in terms of certainty" in order to support a claim. See Lathan v. Brown, 7 Vet. App. 359, 366 (1995). The law recognizes the uncertainty of opinion inherent in VA questions including those touching on questions of medical fact or medical opinion, as otherwise there would be little need for the benefit-of-the-doubt rule where evidence is found to be in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1991); cf. Jones v. Shinseki, 23 Vet. App. 382, 390-391 (2010) (an examiner who states that an examination opinion cannot be provided without mere speculation must provide a clear, legitimate explanations why this is so). The non-opinions provided by the February 2009 spine examiner, in the absence of adequate explanation as to why requested opinions cannot be provided, can neither serve to support the claim nor serve to exclude any necessity of further examination.
Further, medical statements like those provided that are inconclusive as to the origin of a disorder cannot be employed as suggestive of a linkage or non-linkage between the disorder and the Veteran's military service. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).
The Board notes that the VA examiner's non-opinion of January 2010 was also deficient for failure to consider the Veteran's own statements or other lay evidence to support questions of etiology or continuity of symptomatology related to service. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. See 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).
As the Board instructed in its December 2009 remand, where, as here, the requested medical opinions cannot be obtained from prior examiners, a further VA examination is in order to address the Veteran' claim for service connection for a low back disorder.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and ask him to provide any additional evidence or information he may have regarding his remanded claims for service connection for hearing loss and tinnitus, and for service connection for a low back disorder. All records and responses received should be associated with the claims file, and any indicated records development should be undertaken.
2. Thereafter, the examiner who conducted the January 2010 hearing loss examination should again be asked to provide addendum opinions. The claims folder must be made available to the examiner for review. The examiner should do the following:
a. Note that addendum opinions are again required because it appears that the entire claims file, such as contains the prior hearing loss examination conducted in February 2009, was not available to the examiner when the examiner provided an examination report and addendum opinion in January 2010. Because that prior Board remand instruction was not followed, an addendum opinion must again be requested.
b. Review the claims file, including in particular the service separation examination in March 1963, with its hearing acuity findings, including based on conversion from ASA to ISO units. (The folder with the original service treatment records file contains that examination report, whereas the folder with copies of service treatment records does not.) The examiner is to note in this regard that, upon conversion of units from ASA to ISO units, the Veteran showed threshold hearing of 25 decibels in each ear at 500 hertz upon that separation exam, and thereby then met that criterion for a showing of some degree of hearing loss at that level, under Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner should also note prior findings including upon VA examinations in February 2006 and February 2009, as well as the examination or addendum provided in January 2010.
b. Separately for both bilateral hearing loss and tinnitus, the examiner should opine whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the disorder originated in or is causally related to service; or whether such origin or causation is unlikely (i.e., less than a 50-50 degree of probability).
c. In providing the above opinions, it is essential that the examiner review past and current lay statements by the Veteran, and consider both documented evidence of any history of disorder, and the absence of any such history over any relevant time periods. The examiner should also consider other factors which may affect a determination of etiology as related to service.
d. Note: The term "at least as likely as not" as used above does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
e. Any opinion provided must include a medical analysis, with discussion of specific evidence of record. If any questions cannot be answered without resorting to pure speculation, the examiner must provide a complete explanation why those questions cannot be answered.
3. If the above opinions cannot be obtained from the prior examiner who conducted the January 2010 VA hearing loss examination, then the Veteran should be afforded a new VA hearing loss examination to address the above questions of etiology related to service, properly informed by review of the claims file and the medical history.
4. Also after completion of remand instruction 1, afford the Veteran an additional VA orthopedic examination by an examiner other than the examiner who conducted the February 2009 spine examination. The examination should address the nature and etiology of any current low back disorder. The claims folder must be made available to the examiner for review. The examiner should do the following:
a. The examiner should note that the prior examiner who conducted the February 2009 spine examination failed to provide the requested opinions of etiology as to whether there is any current low back disorder related to service, and did not provide adequate reasons for failure to provide those opinions. Rather, that prior examiner relied on the absence of a sufficient degree of scientific certainty or exactitude based on the evidence presented. In this regard, the Board advises the current examiner that the opinion requested - as to whether it is at least as likely as not that a current low back disorder developed in service or is otherwise related to service - need not be expressed in terms of scientific exactitude.
Rather, a medical opinion is requested, for which the Board relies upon the examiner's best medical judgment informed by the evidence presented, including both medical evidence and lay statements or other evidence of record. The line between judgment and speculation is not always clear under such circumstances, but it will be sufficient that the examiner provides a medical opinion that is informed and supported by the evidence presented, and thus does not constitute "mere (uninformed) speculation." See Black v. Brown, 5 Vet. App. 177, 180 (1993).
b. The examiner is hereby advised that, to the extent deemed relevant and credible, lay statements may be used to support a diagnosis or an assessment of etiology as related to service. In this regard, if the examiner judges questions concerning the Veteran's credibility to be at issue, the examiner should explicitly note any such questions (if any are present), whether raised by the medical record or by submitted statements or based on the Veteran's assertions upon examination, in combination with examination findings. If no questions are raised concerning the Veteran's credibility, then the examiner should have no basis to reject the Veteran's assertions concerning the cause or etiology of his claimed low back disorder. Alternatively, if the examiner believes that the Veteran is forthright in his statements yet has an honest misapprehension of his medical condition or its symptoms or etiology, or the Veteran otherwise honestly but mistakenly presents evidence not to be relied upon by the medical examiner, then the examiner should explain this situation as well in the examination report.
c. For each low back disorder medically identified, the examiner should then provide a new opinion responsive to the following question: Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's low back disorder was first manifested in service, pre-existed and was aggravated (permanently increased in severity) during service, or is otherwise causally related to service, OR, in the alternative, is any such relationship between service and the current low back disorder unlikely (i.e., less than a 50-50 probability)?
d. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
e. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to unsupported speculation, the examiner must provide a complete explanation as to why that is so.
5. Then, readjudicate the remanded claims de novo. If any benefit sought by the remanded claims is not granted to the Veteran's satisfaction, provide him and his representative with a Supplemental Statement of the Case and afford an appropriate opportunity to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs